Thoughts on culture and events by author and illustrator Christopher R Taylor

Saturday, May 20, 2006

I WANT MY RIGHTS

"In America, no other distinction between man and man had ever been known but that of persons in office exercising powers by authority of the laws, and private individuals. Among these last, the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar." -Thomas Jefferson

One of the most important, but least understood concepts for a republic to survive is the idea of what rights are. People call for civil rights, demand their rights, call upon the bill of rights. The Declaration of Independence says this about rights:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

And the US Constitution says this:

Amendment IXThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Amendment XThe powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

We must as a people understand what rights are and are not to have an orderly and survivable republic, to have a future to hand down to later generations and a legacy to be proud of in any nation.

Rights are a tricky thing to define, because to do so typically reveals an agenda or at the very least certain unquestioned assumptions you hold about life and what it means. To use Francis Schaeffer's term, your worldview. For example, modern liberals define rights differently than modern conservatives, who are different from classical liberals such as Thomas Jefferson, while libertarians define rights in a different way. To find the "true" definition is difficult due to this conflict of opinions and due to how the word is used differently in each context and setting.

But without a shared idea of what rights mean, we are unable to call for, defend, or reject as false different claims of rights. Is marriage a right, as the court Loving v. Virginia claims? Is raising a child a right? Is privacy a right? And what rights is the government compelled to protect and provide? Do rights issue from government or from some other source? How we answer these and other questions defines the direction of our nation and society and how we'll answer other questions as they rise in the future.

For example, the presumption that marriage is a right raises a great deal of possible conflict in the future. If everyone has a right to marriage, then should the government provide a suitable spouse? Can someone say no to a proposal if that's your right? What are the limits on who or even what one can marry if it is a right? If marriage is a binding contract, how can it be a right?

To understand this, we must distinguish between five different concepts, which to some degree or another are often confused or blended. Before we can know what a right is, it is useful to consider what it is not. To a certain degree, some of these overlap in some areas, as we will see. These five concepts are, (in addition to rights):

Freedoms: things any citizen can attempt, regardless of law or morality

Necessities: things the citizen needs in order to function or survive

Privileges: things the citizen can enjoy if they fulfill certain requirements

Responsibilities: things the citizen is obligated to provide

FREEDOMS: While many freedoms are rights, some are not. Everyone is free in a republic to choose the job they wish, for example. You may have no chance at successfully obtaining this job, and the job they desire or gain may be illegal or even immoral (hit man), but you are free to seek this job. Freedoms in this sense are generally separate from ought, that is, they are not restricted by law or responsibility. One is free to kill or steal or lie about eating Bon Bons all day, but one ought not do so. Freedoms are the most often confused with rights - being free to do something does not mean one has the right to do this thing.

This is the one area of the Declaration of Independence where Thomas Jefferson truly dropped the ball. Jefferson got his triad of basic rights from John Locke; Life, Liberty, and Property. But he substituted the right of property with pursuit of happiness as if it some how could ever be denied someone the ability to attempt to be happy. Being happy is a freedom, it is something you can try to do without restriction, to varying degrees of temporary success.

Freedoms are nearly limitless in this sense, one can attempt nearly anything in this life, even to fly if they are fantastical enough. One is free to do almost anything, but this does not mean that anyone is obliged to assist, permit, or encourage you in this attempt. In many cases, society has laws to prevent such activity, and sanity prohibits others (the attempt to leap across the Grand Canyon, for instance).

NECCESSITIES: For the most part, this category is not difficult to understand and grasp. Every human being has certain basic necessities of life, things without a minimum of which they cannot survive or function in society. Food and air, for example, are very obvious necessities. Shelter is a necessity, but beyond this the necessities become more difficult to defend and argue. Life-saving medical care is a necessity, without which one would perish. Lacking a necessity negates one's ability to be a citizen or live at all. Without necessities, one has no rights.

There are many things without which life become very unpleasant and difficult, but which are not truly necessary to function or survive. Employment, for example, is very important not only for wages but for the well-being of someone's psyche, for their sense of worth and accomplishment. Human contact is very miserable to do without and if sufficiently withheld can be damaging to someone's mental stability.

Certain things, however, are not necessities, no matter how much we may wish them to be or like them. Sex is a classic example, while it can be unpleasant and for some unthinkable to do without sexual activity, it is not a necessity, one can function and survive without any sex, even if they are in a long-term relationship. Art is another thing that while it greatly enhances life and the lack would be dreary and tedious, is not a necessity.

PRIVILEGES: These are acts or items that one gains through personal effort, luck, or merit. Privileges are luxuries, things which make no significant impact on someone's life other than enjoyment, things which can be abandoned entirely without threatening one's life and utility in a community. This is where sexual activity properly belongs, rather than necessity. Sexual Activity is a privilege, something that is engaged in by those who have earned a certain trust and maturity, who are in a setting that allows this behavior. Privileges can be taken away from someone due to their not earning these benefits or for not having the means to procure them. Often, exercising a right is a privilege in its self. One has the right to property and liberty but if they have broken the law they have forfeited the privilege of exercising those rights.

Having an internet connection at all is a privilege, not a necessity, a responsibility, or a right. Being well-paid is a privilege, being a football star is a privilege. Privileges are reserved for the few and are not required for any. Immigrating to a nation is a privilege, not a right or a necessity, to list a more topical and "hot-button" issue.

RESPONSIBILITIES: Responsibilities are those duties and acts which a citizen must carry out to remain a citizen or a proper member of society. One has a responsibility to obey the laws of a society, not a privilege or right, and not a necessity - one can refuse to follow these laws and survive, if not prosper. One has a responsibility to raise their own children, one has a responsibility to vote in a republic, one has a responsibility to respect the rights of others. Each citizen has a responsibility to work to benefit society in some manner, whether gainful employment, volunteering, or beneficial efforts through their influence on family and neighbors.

THE SOCIAL CONTRACTThis last concept is often dismissed or misunderstood by modern citizens who are more focused on personal enjoyment, liberty and life than on the culture and society they find themselves in. While each person enjoys rights and personal liberty in a republic, each person has a responsibility to those around them and the society as a whole. This concept is called the "Social Contract" which was best described and explained by Blackstone in his Commentaries on the Laws of England from the mid 1700's:

And this is what we mean by the original contract of society...that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any.

That is to say; each member of a society gains benefits from being in that society, but in order to gain those benefits must be a productive member. They have to defend the rights of others, submit to the laws and will of the society, and protect the other members of the community while in return being protected by those laws and the fellow citizens.

The Social Contract is an agreement by the members of a community to work together for civilization and the betterment of all. In this effort, certain privileges are given up by it's members, such as the desire to act however they desire without concern of harm to others. The idea of the Social Contract was written about and considered by Thomas Hobbes (1651), John Locke (1689) and Jean-Jacques Rousseau (1762) and this concept was the foundation of what the United States was based upon, among others. These men argued that without this Social Contract, society dissolves and civilization ends, reducing people to a barbaric "natural state" without law, structure, or benefits of society.

Free citizens are free, insofar as they do not violate the freedom of others and do not damage society to such a degree that they interfere with the general benefit of the other members of the contract. All government is, in essence, an agreement - a contract - between the governed and the governor. Even the most heinous tyranny only exists and continues as long as the citizens allow it to. In a republic, this is more pronounced, with the citizens in more direct control of their destiny and government. But all citizens work together toward a common, shared goal of peace, prosperity, comfort, and safety in any government. Those who violate this contract are punished based on the agreed upon contract as codified through law.

This idea of the social contract, while mocked and dismissed by some, is the basis for government and is an important idea to understand when considering rights and responsibilities. If one is part of this contract, then rights have to be understood in the light of this contract, not as a free, unrestrained personal source of endless liberty. This is why, even though we have the right to liberty, it can be taken away by the state if one has proven to violate the social contract to a sufficient degree. Your rights presume a certain adherence to the social contract, just like the rights of any contracting party are within the agreements of that contract.

Rights and Responsibilities always go hand in hand, there is never a wholly free and unrestricted right of any kind. You have the right of free speech in many countries, but in none of those is this right completely free so that there are no restrictions or is the responsibility to use this wisely and properly negated. "Your right to swing your fist ends at my face," to quote John Stewart Mill.

RIGHTSWith an understanding of what rights are not helps us to know what rights are as a citizen and a human being. All people, whether citizens of a country or not, equally have certain rights. These rights cannot be removed, but they can be crushed and the free exercise of them can be prevented by tyranny. Whether one is able to exercise these rights or not, they are still owned and part of each human being of any age, gender, or status. These rights are described in the Declaration of Independence as self evident, inalienable, and given by the creator. This three-part definition of rights is what the entire concept of liberty, justice, and rights were based upon in the United States for over a century. Recently, these concepts have all three come under attack, despite their being the foundation of this nation and the basis for rights that the founding fathers formed the nation upon and understood.

Inalienable: rights that are said to be absolute, not transferable to another power, and incapable of repudiation.

Self Evident: clearly understood through examination of human nature, obvious to any who study and comprehend rights – not so obvious that they require no examination

God-Given: rights are not the result of government benevolence or personal effort, but are part and parcel of being a human. Not awarded by human power. Rights are part of a human being and a consequence of being alive, thus issue from a transcendent authority.

Thus, in order to be a right, something has to share certain characteristics.

It has to be something that all human beings share regardless of their status, age, or gender.

It has to be something that cannot be taken away, although their free exercise can be restricted. It has to be something that everyone can exercise, not simply a few or limited class.

It has to be something that can be restricted or that can have it’s exercise prevented or it is no longer a right, but a fact of life, a natural law (such as gravity). Thus, rights must be something the government can defend and restrict. Were it something a government could not defend or restrict, it would be something that cannot be prevented and thus would cease to be a right and would simply be part of nature.

It cannot require someone else to be exercised, or they would cease to be inalienable – they would cease to exist simply by someone not being a part of your activity. The exercise of a right does not require another person, either (freedom of speech does not imply requirement to be heard, for example). Rights are individual and personal in this sense.

It is held and exists regardless of the location of a person. This is why rights are so basic, they are part of being a human, they are essential parts of humanity in that they are carried in all situations. One has the right to life, liberty, and property in all areas because they are inalienable, the position one occupies does not change their existence. Certain laws may prevent the exercise of a right in certain areas or situations, but the right remains.

Rights are not like laws of nature in that they can be violated but still maintained. For example, one can prevent you from speaking, despite the fact that you have a right to say what you please about public affairs. But one cannot prevent the law of entropy from taking place or gravity from its pull. A right is a legal, moral, and traditionally just claim that any human can make for themselves regardless of other persons or location.

TAKING AWAY RIGHTSIt is not actually possible to remove a right, they are part of being a human and are inalienable. However, a force more powerful than the person involved can prevent the free exercise of rights. In the social contract, all members of the community agree to certain laws and restrictions on their rights – one has a right to liberty, but not to unlimited liberty, especially at the expense of others, for example. Usually these restrictions are to guarantee the free exercise of rights to all. If one had the freedom to kill others, this would negate their ability to exercise their right to life.

When this contract is violated, the community takes upon its self the duty and burden of restricting the rights of the violator. They broke the law, and as a result have lost the privilege of exercising some of their rights. Punishment such as fines, imprisonment, and the death penalty are all examples of having the free exercise of rights taken away from a person as a result of their violating the social contract.

Government is given the power by it’s citizens to exercise this duty, to punish lawbreakers and issue laws that restrict the free exercise of rights. Such limitation must be done not for power or ideology, but rather because the failure to do so would result in the loss of free exercise or the endangerment of other members of the society. The social contract that all who live in a community defines these restrictions.

NATURAL VERSUS CONSTRUCTED RIGHTSWhat we have been discussing are Natural Rights, rights that all citizens bear and have regardless of age, location, or status. However, there is a second kind of right that is discussed and used in our culture. These are Constructed Rights, rights that are given to citizens by government rather than by God and protected by government. Such rights are not properly rights at all, but are rather freedoms, privileges, or responsibilities. These rights are ones such as Voting or Marriage. Such activities are protected in their exercise by government and given their existence by law, but are neither inalienable or self-evident, nor do they issue from a transcendent authority, but instead local and human authority. They are powers given citizens by the government that they can choose to take or not take part of.

Properly understood, constructed rights are where the idea of President Reagan's Positive and Negative rights come from. For President Reagan, positive rights are those granted by government through action, and negative rights are those the citizens exercise while free of government influence and power. Positive "rights" would be ones such as the right to a job and health care. Negative "rights" would be the right to be left alone and run a business without government intervention. For President Reagan, negative rights are the most potent and valuable for liberty in a nation because the government tends to restrict freedoms by it's exercise of power.

The problem with calling these rights is that they become confused with basic rights such as Life, Liberty, and Property. Such constructed rights are not of the same category or nobility as natural rights, as they exist only as part of a structure of laws and government, issue from these laws and government, and are not a natural part of being a human. Such rights are not really rights at all because they do not issue naturally and inevitably from being alive and human. However, an examination of some of these is necessary to understand the difference.

VIOLATING RIGHTSIn the purest sense, it is not possible to violate someone’s rights. The only thing that someone can do is violate the exercise of these rights. Killing someone does not negate their right to life, it simply negates the exercise of that right. It is more cumbersome but significantly more accurate then to speak not of violating rights, but violating freedoms or exercise of rights.

NOT RIGHTSome things that are and have been declared as rights are, therefore, not natural rights at all.

For instance, in 1967 the US Supreme Court examined a case where a man and a woman were arrested for being married because one was black and one was white. At the time, Virginia was one of 16 states that outlawed such marriages. The court declared that marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. They ruled that marriage is a right, and thus is protected by the 14th amendment which states in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

However, marriage by its definition requires two people and thus cannot be a right. Marriage is more properly a privilege, something that certain people can achieve by merit or effort, but it cannot be a right, because it requires by definition at least two members. If a right requires more than one person it can be prevented from existing simply by someone else refusing. This right is alienated from me – prevented from my owning it – by someone else simply refusing me. The exercise of such a mythical right would require someone else to be part of the activity. This violates the definition of a natural right.

No one has a right to child birth. Not only is this something only women can do, but only some women, of the correct age, biological ability, and health. A right must be shared by all humans or it is no longer a natural right.

Each right must be examined in the light of what rights truly are. No one has a right to a job, no one has a right to good pay, no one has a right to be healthy. These may be privileges that the government desires to extend to it’s citizens, but they cannot be defined as or insisted on as rights. No one has a right to live in the United States, but citizens are extended legal protection and privilege to do so.

Voting is not a right. One does not have an innate, inalienable right to vote, except as an expression of the right to speak freely. Voting is a responsibility of citizenship and a privilege of being a certain age. The right to vote is a construct of government rather than a natural right.

GOVERNMENT AND RIGHTSA right is not granted by government. This is a critical distinction, one that is deeply important to remember. A right exists even if government does not, it is part of the very nature of being human, inalienable and God-given. Government is a device by which a society works together to protect and allow the free exercise of rights that are already held by each and every citizen. That is the purpose of government, to be the will of the members of the social contract to defend rights and protect the people.

Rights are dictated to the government through laws by citizens of a republic. For example, the United States Government is told through the codified will of the people - the Constitution – what rights the government is to protect and guarantee the free exercise of. Rights are held by citizens separate from and outside the purview of government, not because of it. All government can do is protect the exercise of these rights or prevent them through the force of law and arms.

CITIZENS AND RIGHTSIt is a fact, however, that as powerful a force as government is for the guarantor of the exercise of rights, it is not the only or perhaps the most powerful. Individual citizens are the best protectors of the free exercise of individual rights, for a government may demand that all be free to take certain actions, but if the people refuse to allow it or shame its exercise to the point of negation, then no amount of government efforts will matter. More importantly, a government may try to prohibit the free exercise of a right, but if the citizens protect and encourage it, the government can do little to prevent this, and never for long.

Citizens have a responsibility and a duty in the social contract to personally defend the rights of fellow citizens not only for their own benefit (each protecting each other) but because these rights are part of the necessary and good exercise of humanity. It would be immoral not to protect these rights. Citizens carry the greatest responsibility and duty to protect these rights, although they delegate some of the power to the government to act in their place.

LAST THOUGHTSThe works of John Locke postulated the three basic rights of humanity (although these are not the only three): Life, Liberty, and Property. These rights are a hierarchy of rights, descending in order of magnitude by necessary consequence.

If one is not alive, they have no rights at all, thus life is the primary right of all humanity. After this comes liberty, for if one is not free, one cannot exercise any right other than life, such as property. The right to property is possible only to exercise if the previous two rights are guaranteed and protected. This hierarchy is useful to understand certain rights and responsibilities a citizen has.

For example, the Roe v Wade decision declared that a woman has a right to privacy (which is proper and reasonable), and thus can choose what to do with her own body. This is true, to such an extent as it does not violate other people’s free exercise of their rights, and as long as its exercise is subject to the higher rights in this hierarchy. Certainly under no circumstances can any person defend the killing of another person due to the desire for privacy. Your exercise of your right to privacy does not permit the ending of another person’s life.

Another example would be the exercise of religion. One has a right to their faith and beliefs, but not to the extent to which this exercise would violate the free exercise of other’s rights. Thus, claiming that your free exercise of religion requires you to cut the head off infidels is not a proper right or exercise thereof.

The understanding of these rights and what they mean changes the entire character of a discussion of rights and the arguments being presented by pundits and writers. A true understanding of what rights are, a comprehension of what rights are not and the nature of government and these rights in proper relationship would be incredibly beneficial to our nation and world.

7 comments:

Years ago, I worked with teens and if I had a dollar for every time I heard about their rights, I'd be rich. I finally told them that I didn't want to hear about their rights any more until they started telling me about their responsibilities. If I'd had your article, I would have just told them to read it.

Yes, I took a year or so off to get some perspective and pray and study and now I'm working in this forum. World blog sort of lost my interest, a combination between a dislike of the new format and what seemed to be a loss of real interest in the blog by Marvin Olasky.

Yeah, fixed a few of the links, I wasn't updating the month when I did a cut and paste ;) That's what I get for being lazy eh? Also added my essay on the Constitution, although I'm not as happy with it as this one.